Government forum reviews open meetings and public access rules
R.I. Attorney General’s Special Assistant Lisa Pinsonneault brought a packed audience up to speed on changes to the state open meeting and public record laws on Dec. 6.
These changes went into effect on September 1 and the AG's office has been scheduling summits around the state. Town Clerk Fiona Fitzpatrick noted she annually invites representatives from the state to provide updates to island residents on the most current procedural guidelines for public bodies and for running public meetings.
No one expected an estimated 70 people to show up for the meeting, but questions from the floor made it clear that there's keen public interest in the issue and particularly how it might relate to the Block Island Health Services board of directors, which is in the process of renewing its management contract with the town. The board has said it does not follow open meeting law, although its bylaws say it must.
While Pinsonneault was able to answer a number of procedural questions, one question about whether or not the BIHS board is already bound to follow open meeting law remained unanswered at press time.
Principles of a free society
Pinsonneault noted that the Access to Public Records Act (APRA) was premised upon “principles of the utmost importance in a free society”: the right of the public “to access public records and the individual’s right to dignity and privacy.”
In literature she distributed, the responsibility of the state was laid out as determining “what is and what is not in the public’s interest to know.” The issue was framed as a conflict of legitimate interests: “Does the individual right outweigh the public’s right to know?” Essentially the role of the state is to safeguard each, as much as possible.
The revised act defines a public body as any group acting on behalf of state or local government, and also any entity "acting on behalf of and/or in place of any public agency.”
Access to public records
If public records are requested, Pinsonneault pointed out that while a public board “is not under obligation to answer a question, it is obligated to provide source material.” These requests may be accepted orally and although an “agency may have a request form, it cannot require an individual to fill it out.”
“Search and retrieval,” she said, “and response must be made within ten business days and only in one of three ways: 1) to provide access to the record; 2) to extend the time of response (usually adding 20 days) and notifying the individual or 3) to deny access.”
Denial must be made in writing, specifying reasons for denial, and the group must provide a procedure for appeal.
“If a group receives a request for records it doesn’t maintain,” Pinsonneault said, “it still needs to respond and to explain its response.”
Kay Lewis asked, “What if you maintain records but can’t find them?” Pinsonneault repeated, “You still need to respond.”
Records that are exempt from public access include those related to doctor/patient and attorney/client relationships as well as any medical information related to an individual. All “preliminary drafts, notes… memoranda, working papers…” are exempt, except if these are “submitted at a public meeting.”
Pinsonneault also suggested that since search and retrieval of material may be time-consuming and also involve photocopying, a reasonable fee may be affixed.
What is affected by the Open Meeting Act (OMA)?
There are three areas in which the OMA applies: for a public body, a quorum and a meeting. Mary Sue Record questioned the role of subcommittees and their distinction from public bodies. Pinsonneault explained that they are generally set up to gather information or do research, and so are acting in an auxiliary role to the public board. In the case of long-term standing committees, however, a subcommittee might be considered a public body.
Lewis asked, “Suppose a subcommittee of two or three individuals is stuffing envelopes for a fundraiser, for example. You can’t designate that a public meeting, can you?” Town Manager Nancy Dodge suggested it more likely would apply to a subcommittee of two people that was “discussing substantive issues to bring back a determination to the larger body.”
Agreeing, Pisonneault said that if appointed by a board, a subcommittee does report to and make recommendations to the main body.
Addressing Pisonneault, Peter Baute said, “What you need to know is, the situation is that people here are trying to apply that [standard] to a not-for-profit, non-public organization. That is, it is funded by the town and has a lease agreement with the town, and some people and some Town Councilors are saying we want you to [adhere] to the rules of a public body.”
Pisonneault said, “It depends on what is considered a public body,” and on its function, pointing to the definition in Chapter 2 of the state document. While the public/private issue was raised, it was not resolved at the meeting.
The discussion of subcommittees led into consideration of what constituted a quorum.
As defined by the state, it is “a simple majority of the membership.” Pinsonneault indicated there was something called a “walking quorum,” which is made up of a “series of meetings each less than a ‘quorum’ but that collectively represent a ‘quorum.’” This [walking quorum] constitutes a violation of the law, she said.
When to close/when to open
The requirement for public bodies is that they hold open meetings unless they are closed for reasons pertaining to “job performance, character or physical or mental health of a person(s),” on the provision the individuals involved are notified in writing. Then the discussion may or may not take place in open session at the discretion of the subject.
The group may go into executive session on “an affirmative vote by the majority of the attendees, who must give their reason for going into a closed meeting,” Pinsonneault said.
Baute asked if he were correct in assuming, “You are required to say you took a vote in closed session but not on what.” Pointing to the state documents, Pinsonneault explained that “all votes taken in closed session must be disclosed on return to a public meeting.” The state document further indicated that “within two weeks of any vote, a record listing how each member voted on each issue must be available.”
Pinsonneault said anyone wishing to file a complaint or learn more about accessing public records or about the OMA may contact Attorney General Peter F. Kilmartin’s office at www.riag.ri.gov/civil/opengovernment/.